Repatriation Commission v Crane [2004] FCAFC 86 (5 April 2004)

Last Updated: 5 April 2004

FEDERAL COURT OF AUSTRALIA

Repatriation Commission v Crane [2004] FCAFC 86

VETERANS’ ENTITLEMENTS – appeal from Administrative Appeals Tribunal – major depressive disorder and generalised anxiety disorder – exposure to asbestos – whether the Administrative Appeals Tribunal considered the correct Statement of Principles – whether the Administrative Appeals Tribunal considered the matters set out in Repatriation Commission v Deledio [1998] FCA 391; (1998) 83 FCR 82 – whether the Tribunal put its mind to the connection between the diseases and the veteran’s eligible service




Veterans’ Entitlements Act 1986 (Cth) ss 5C(1), 5D(2), 5Q(1A), ss 6 to 6F, ss 7, 9, 13, 14, 15, 17, 19, 68, 196, Part II, Schedule 2

Repatriation Commission v Deledio [1998] FCA 391; (1998) 83 FCR 82 applied
Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996)
185 CLR 259 referred to











REPATRIATION COMMISSION v JOHN CAMPBELL CRANE

No Q 82 of 2003



SPENDER, RD NICHOLSON and NORTH JJ
BRISBANE
5 APRIL 2004

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	Q 82 OF 2003

ON APPEAL FROM THE VETERANS’ APPEALS DIVISION OF THE ADMINISTRATIVE APPEALS TRIBUNAL CONSTITUTED BY DEPUTY PRESIDENT D MULLER

BETWEEN:	REPATRIATION COMMISSION APPLICANT
AND:	JOHN CAMPBELL CRANE RESPONDENT
JUDGES:	SPENDER, RD NICHOLSON and NORTH JJ
DATE OF ORDER:	5 APRIL 2004
WHERE MADE:	BRISBANE

THE COURT ORDERS THAT:

1.	The appeal be dismissed.
2.	The applicant pay the costs of the respondent, to be taxed if not agreed.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	Q 82 OF 2003

ON APPEAL FROM THE VETERANS’ APPEALS DIVISION OF THE ADMINISTRATIVE APPEALS TRIBUNAL CONSTITUTED BY DEPUTY PRESIDENT D MULLER

BETWEEN:	REPATRIATION COMMISSION APPLICANT
AND:	JOHN CAMPBELL CRANE RESPONDENT

JUDGES:	SPENDER, RD NICHOLSON and NORTH JJ
DATE:	5 APRIL 2004
PLACE:	BRISBANE

REASONS FOR JUDGMENT

THE COURT:

1 This is an appeal from a decision of the Administrative Appeals Tribunal ("the Tribunal") given on 16 May 2003. The Tribunal set aside a decision of the Veterans’ Review Board of 31 August 2001. Mr Crane ("the veteran") had applied to the Board for review of a Repatriation Commission ("the Commission") decision dated 21 August 2000 (as varied by the Veterans’ Review Board decision dated 18 May 2001), which refused a claim for medical treatment and pension for incapacity from major depressive disorder and anxiety disorder, on the ground that the conditions were not "service related". The term "service related" is imprecise and unhelpful, and finds no statutory basis in the Veterans’ Entitlements Act 1986 (Cth) ("the Act"), apart from indicating a possible connection with any particular service that is relevant under the Act.

2 The decision of the Board was to ‘affirm the decision under review in relation to major depressive disorder and anxiety disorder. This means that the Repatriation Commission’s decision is unchanged in relation to those matters.’

3 The Tribunal set aside that decision and ‘in substitution determines that John Campbell Crane’s major depressive disorder and generalised anxiety disorder are war-caused with effect from 29 February 2000. The matter is remitted to the Respondent to re-assess any other claims made by the Applicant which may depend on the above outcome and to assess the rate of pension.’

The Commission has appealed from that decision of the Tribunal.

4 Mr Crane suffers from a major depressive disorder and generalised anxiety, a matter not in dispute on the appeal. What is in issue on the appeal is the conclusion by the Tribunal that the veteran was entitled to be compensated pursuant to the Act for that psychiatric condition, and in particular, its conclusion that that entitlement under the Act was to be assessed on the basis that the psychiatric condition was war-caused.

5 There are really two complaints by the Commission concerning the decision. The first is the assertion that the Tribunal did not consider the correct Statement of Principles when considering the disease of ‘generalised anxiety disorder’, and that if the Tribunal did consider the correct Statement of Principles, it failed to consider the matters required to be considered as set out in Repatriation Commission v Deledio [1998] FCA 391; (1998) 83 FCR 82 ("Deledio"). The second broad ground of complaint is that the Tribunal erred in ‘not putting its mind to the connection between the disease and the respondent’s eligible service, rather than the respondent’s naval service generally.’, it being said that the Tribunal has not sufficiently explained the basis for its finding that the psychiatric illness of the respondent had in fact been contributed to by his "operational service."

6 For the reasons which follow, these arguments, on analysis, are matters of form rather than substance, and require the reasons of the Tribunal to be looked at in isolation from the context in which the decision was made.

7 The Tribunal’s reasons have to be seen in the context of the decision at first instance by the Repatriation Commission and the reasons for it, and the decision and the reasons of the Veterans’ Review Board. That context makes it plain, as do the definitions of "relevant service" in the four relevant Statements of Principles, that the fight before the Tribunal was over whether a reasonable hypothesis connecting Mr Crane’s psychiatric condition with his operational service existed. The Tribunal looked at the matter and concluded that it did.

8 It has to be said, however, that the complaints by the Commission have been fuelled by the cryptic and attenuated reasoning process displayed in the reasons of the Tribunal, which has necessitated a detailed enquiry of the applicable legislative provisions, the terms of the relevant Statements of Principles, and the curial history of the matter, before the Court could be satisfied that there was no legal error attending the Tribunal’s decision.

Legislative Provisions

9 The Act establishes a scheme which, amongst other things, provides pensions and other entitlements for persons who have served Australia by rendering "operational service" or "defence service" with the Australian Defence Forces. "Operational service" is defined in the Act in ss 6 to 6F inclusive. "Defence service" is defined in s 5Q(1A) and s 68(1) of the Act.

10 A "veteran" is defined in s 5C(1) of the Act, and "war-caused disease" and "war-caused injury" are defined in s 5D(2) and s 9 of the Act. A veteran who becomes incapacitated as a result of a war-caused injury or war-caused disease is eligible for a pension in accordance with the Act.

11 For the purposes of this appeal, s 9(1)(b) of the Act is relevant. That subsection relevantly provides:

‘... an injury suffered by a veteran shall be taken to be a war-caused injury, or a disease contracted by a veteran shall be taken to be a war-caused disease, if:
...

(b)	the injury suffered, or disease contracted, by the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran;

12 Section 7(1)(a) of the Act provides:

‘(a) a person who has rendered operational service shall be taken to have been rendering eligible war service while the person was rendering operational service; ...’

13 By Section 6C of the Act, a person renders operational service if they are, amongst other things, allotted for service in an operational area. "Operational area" is defined in s 5B(1) and is that area (and time) specified in Schedule 2 of the Act (Columns 1 and 2). Vietnam (Southern Zone) from 31 July 1962 to 11 January 1973 inclusive, is an operational area for the purposes of the Act.

14 The effect of these provisions of the Act is that if the psychiatric condition of the veteran in this case is attributable to his operational service in Vietnam waters, his illness is "war-caused".

15 The general scheme of the Act is as follows. Section 13 of the Act imposes upon the Commonwealth, liability to pay pensions to eligible persons. Section 14 of the Act deals with the making of claims for pensions and s 15 of the Act deals with making applications for increases in such pensions. Section 17 of the Act requires the Secretary of the Department of Veterans’ Affairs to investigate claims and applications. Section 19 of the Act gives to the Repatriation Commission the duty of determining claims and applications for pensions and to determine the rate at which the pension is payable.

16 The Act provides in Part II for pensions at four different rates, depending upon differing criteria:

(i) A sliding scale (from 10%- 100%) which reflects the degree of incapacity which a veteran suffers by reason of a war-caused injury or disease – known as the General Rate (ss 21A, 22 and 29 of the Act);
(ii) Extreme disablement adjustment (s 22 of the Act);
(iii) Intermediate rate (s 23 of the Act);
(iv) Special rate (s 24 of the Act).

17 In determining a causal link between the particular service of a person and particular diseases and injuries, the Act provides for the development and determination of Statements of Principles by a body entitled the Repatriation Medical Authority (s 196B). A Statement of Principles determined under s 196B of the Act is a disallowable instrument (s 196D).

18 Section 196B(2) of the Act relevantly provides that if the Authority is of the view that there is sound medical-scientific evidence that indicates that a particular kind of injury or disease can be related to operational service rendered by veterans, the Authority must determine a Statement of Principles in respect of that kind of injury or disease, setting out the factors that must as a minimum exist, and which of those factors must be related to service rendered by a person, before it can be said that a reasonable hypothesis has been raised connecting that injury or disease with the circumstances of that service.

19 Section 196B(3) of the Act relevantly provides that if the Authority is of the view that on the sound medical-scientific evidence available it is more probable than not that a particular kind of injury or disease can be related to eligible war service (other than operational service), rendered by veterans, or defence service (other than hazardous service) rendered by members of the Forces, the Authority must determine a Statement of Principles in respect of that kind of injury or disease, setting out the factors that must exist and which of those factors must be related to service rendered by a person before it can be said that, on the balance of probabilities, an injury or disease of that kind is connected with the circumstances of that service.

20 The Repatriation Medical Authority has determined Statements of Principles in respect of the conditions of anxiety disorder and depressive disorder. These are:

(a) Instrument 58 of 1998 (Depressive disorder – operational service);
(b) Instrument 59 of 1998 (Depressive disorder – defence service);

(c)	Instrument 1 of 2000 (Anxiety disorder – operational service);

(d) Instrument 2 of 2000 (Anxiety disorder – defence service);

21 Instrument 58 of 1998 and Instrument 1 of 2000 are of primary concern on this appeal. Both of those instruments are determinations made under s 196B(2) of the Act. They are therefore relevantly concerned with the question of whether the injury or disease is connected with a veteran’s operational service.

22 Instrument 58 of 1998 defines depressive disorder as including ‘the presence of major depressive disorder.’ That instrument recites that:

‘The Repatriation Medical Authority is of the view that there is sound medical-scientific evidence that indicates that depressive disorder ... can be related to relevant service rendered by veterans ...’

"Relevant service" means:
‘(a) operational service ...’

23 Instrument 58 of 1998 provides that at least one of the factors set out in Clause 5 of the instrument must (in the context of the present case) be related to any operational service rendered by the veteran. Clause 5 of Instrument 58 of 1998 relevantly provides:

‘The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting depressive disorder ...with the circumstances of a person’s [operational] service are:
...

(b) experiencing a severe psychosocial stressor or stressors within the two years immediately before the clinical onset of depressive disorder;or

...

(f) experiencing a severe psychosocial stressor or stressors within the two years immediately before the clinical worsening of depressive disorder;or ...’

24 Instrument 1 of 2000 is directed at anxiety disorder, which definition includes generalised anxiety disorder, which in turn is also defined by Instrument 1 of 2000. It defines relevant service as being (in this case) "operational service", and its provisions are materially the same as for Instrument 58 of 1998 dealing with depressive disorder.

25 Instrument 59 of 1998 and Instrument 2 of 2000 are determinations made under s 196B(3) of the Act. There, the relevant service means eligible war service (other than operational service) or defence service (other than hazardous service). Those instruments recite that on the sound medical-scientific evidence available, the Repatriation Medical Authority is of the view that it is more probable than not that depressive disorder or anxiety disorder, respectively, can be related to the relevant service as defined in those instruments, in this particular case, defence service. In those two instruments, one of the factors that must exist is experiencing a severe psychosocial stressor or stressors within one year immediately before the clinical onset of the disorder.

26 It can be seen that where the relevant service, as defined by the instrument, is operational service, the Statement of Principles indicates that where experiencing a severe psychosocial stressor or stressors within the two years immediately before the clinical onset of depressive disorder (or, alternatively, anxiety disorder) exists, it can be said that a reasonable hypothesis has been raised connecting depressive disorder (or, alternatively, anxiety disorder) with a person’s operational service.

27 Particularly because of the two broad grounds taken by the Commission on the appeal, it is necessary to set out parts of the sections of the Act dealing with the standard of proof that applies to a determination by the Commission where there is a Statement of Principles in effect for the claimed condition, and where the service is "operational service" or "defence service".

28 Section 120 of the Act relevantly provides:

‘(1) Where a claim under Part II for a pension in respect of the incapacity from injury or disease of a veteran, or of the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war-caused injury, that the disease was a war-caused disease or that the death of the veteran was war-caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.

Note: This subsection is affected by section 120A.
...
(3) In applying subsection (1) or (2) in respect of the incapacity of a person from injury or disease, or in respect of the death of a person, related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining:

(a)	that the injury was a war-caused injury or a defence-caused injury;

(b)	that the disease was a war-caused disease or a defence-caused disease

...

as the case may be, if the Commission, after consideration of the whole of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person.

Note: This subsection is affected by section 120A.

(4) Except in making a determination to which subsection (1) or (2) applies, the Commission shall, in making any determination or decision in respect of a matter arising under this Act or the regulations, including the assessment or re-assessment of the rate of a pension granted under Part II or Part IV, decide the matter to its reasonable satisfaction.

Note: This subsection is affected by section 120B.’

29 Section 120A of the Act has particular relevance in the context of "operational service" and where there is a Statement of Principles in effect for the claimed condition. Relevantly, s 120A of the Act provides:

‘(1) This section applies to any of the following claims made on or after 1 June 1994:

(a)	a claim under Part II that relates to the operational service rendered by a veteran;

...

(3) For the purposes of subsection 120(3), a hypothesis connecting an injury suffered by a person, a disease contracted by a person or the death of a person with the circumstances of any particular service rendered by the person is reasonable only if there is in force:

(a)	a Statement of Principles determined under subsection 196B(2) or (11); or

...

30 Section 120B of the Act is concerned with "eligible war service (other than operational service)" and where there is a Statement of Principles in effect for the claimed condition. Section 120B of the Act relevantly provides:

‘(1) This section applies to any of the following claims made on or after 1 June 1994:

(a)	a claim under Part II that relates to the eligible war service (other than operational service) rendered by a veteran;

(b)	a claim under Part IV that relates to the defence service (other than hazardous service) rendered by a member of the Forces.

Note 1: Subsection 120(4) is relevant to these claims.

Note 2: For hazardous service and member of the Forces see subsection 5Q(1A).

...

(3) In applying subsection 120(4) to determine a claim, the Commission is to be reasonably satisfied that an injury suffered by a person, a disease contracted by a person or the death of a person was war-caused or defence-caused only if:

(a)	the material before the Commission raises a connection between the injury, disease or death of the person and some particular service rendered by the person; and

(b)	there is in force:

(i)	a Statement of Principles determined under subsection 196B(3) or (12); or

...

that upholds the contention that the injury, disease or death of the person is, on the balance of probabilities, connected with that service.’

31 As described by the Tribunal in the second paragraph of its reasons, the claim by the veteran was that he suffered a severe psychosocial stressor when he watched a television documentary in 1990 about the incidence of asbestosis in ex-service personnel who had served aboard ships of the Royal Australian Navy, and that he suffered a further severe psychosocial stressor when he was later diagnosed with pleural plaques in 1995. That observation clearly is a reference to the content of the Statement of Principles that governs entitlements under the Act for injury or disease that has a connection with either "operational service" or "defence service", as defined by the Act.

32 Consistent with Instrument 58 of 1998 and Instrument 1 of 2000, the reference to experiencing a severe psychosocial stressor is a reference to ‘experiencing a severe psychosocial stressor or stressors within the two years immediately before the clinical onset of depressive disorder’ (or anxiety disorder). By Clause 5 of those instruments, if that factor exists, it can be said that a reasonable hypothesis has been raised connecting depressive disorder (or alternatively, anxiety disorder) with the circumstances of the person’s operational service.

33 In the context of Instrument 59 of 1998 and Instrument 2 of 2000 which deal with defence service, the reference to severe psychosocial stressor refers to ‘experiencing a severe psychosocial stressor or stressors within the one year immediately before the clinical onset of depressive disorder’ (or alternatively, anxiety disorder), with the consequence that if that factor exists, it can be said, on the balance of probabilities, that depressive disorder or, alternatively, anxiety disorder is connected with the circumstances of the person’s defence service.

34 The veteran was born on 17 January 1951, and served in the Royal Australian Navy from 9 October 1966 to 31 December 1973. For the purposes of s 6C of the Act, the veteran had the following periods of operational service on HMAS Sydney, during each of which period he served as a stoker on board the HMAS Sydney on trips to Vietnam:

(a)	20 December 1967 to 2 January 1968 (14 days)
(b)	17 January 1968 to 16 February 1968 (30 days)
(c)	27 March 1968 to 26 April 1968 (30 days),

a total of seventy-four days. He also rendered defence service from 7 December 1972 to 31 December 1973. The balance of the veteran’s naval service can be described as ineligible service.

35 The Repatriation Commission, on the appeal, makes much of the fact that veteran’s operational service was only for a total of seventy-four days, yet his exposure to asbestos in his service in the Royal Australian Navy was for almost the whole of his period of service in the Navy.

36 It is important to appreciate the context in which the Tribunal considered the competing contentions, and in which it expressed its reasons.

37 The Tribunal had before it the reasons for decision of the Repatriation Commission of 21 August 2000 which, inter alia, rejected Mr Crane’s claim for major depressive disorder. The Commission accepted that Mr Crane had operational service in the three periods in Vietnam, and eligible defence service from 7 December 1972 to 31 December 1973. Dealing with standards of proof and Statement of Principles, the Commission said:

‘Standards of Proof

The Veterans’ Entitlements Act states that for a claim to be accepted the disability must be related to operational or eligible defence service. Different standards of proof apply to these two types of service.

When considering operational service I must accept the claim if there is a reasonable hypothesis connecting the disability with this service. When considering eligible defence service I must be reasonably satisfied that on the balance of probabilities the disability is caused by defence service.

Statement of Principles

The Repatriation Medical Authority (RMA) issues Statements of Principles on conditions claimed as being related to service. These Statements are based on sound medical-scientific evidence and state what factors must exist for a hypothesis to be considered reasonable or for a connection to service to be probable.

I cannot accept a condition as being related to service unless the evidence meets one of the factors set out in the Statement of Principles for that condition. However, for operational service I must be satisfied beyond reasonable doubt that a factor does not exist before the claim can be refused. For eligible defence service I must be reasonably satisfied that the factor exists before the claim can be accepted.’

38 The reasons the Commission gave for rejecting Mr Crane’s claim of major depressive disorder were:

‘The circumstances of this case do not satisfy the Statement of Principles issued by the RMA in respect of major depressive disorder. As a result I find that all the evidence does not raise a reasonable hypothesis connecting major depressive disorder and operational service. I am also reasonably satisfied that it was not caused by eligible defence service. I am therefore unable to accept it as war or defence caused.’

39 The Tribunal also had before it the reasons for decision of the Veterans’ Review Board of 31 August 2001 (which affirmed the decision of the Repatriation Commission), which reasons included the following:

‘STANDARD OF PROOF

8. In respect of the veteran’s operational service, subsections 120(1) and 120(3) of the Act apply. Therefore, the Board is required to find that his claimed conditions were war-caused unless it is satisfied beyond reasonable doubt that there is no sufficient ground for making that finding. The Board must be so satisfied if it is of the opinion that the material before it does not raise a reasonable hypothesis to connect those conditions with the circumstances of the particular service rendered.

9. As the claim was lodged after 1 June 1994, the Board is also required to apply section 120A of the Act in reaching its decision. This means that the Board is required to assess the reasonableness of hypotheses in accordance with any Statements of Principles issued by the Repatriation Medical Authority or any relevant determinations or declarations under the Act.

10. In respect of the veteran’s defence service, subsection 120(4) of the Act applies. Therefore, the Board is required to decide all relevant matters to its reasonable satisfaction. This means that the Board has to decide whether, on the balance of probabilities, his claimed conditions were defence-caused.

11. As the claim was lodged after 1 June 1994, the Board is also required to apply section 120B of the Act in reaching its decision. This means that the Board is required to decide matters to its reasonable satisfaction in accordance with any Statements of Principles issued by the Repatriation Medical Authority or any relevant determinations or declarations under the Act.’

12. The Repatriation Medical Authority is an independent medical body that issues Statements of Principles based on sound medical-scientific evidence. The Statements of Principles set out the factors relating to service that must exist in order to establish a causal connection between particular diseases, injuries or death and service. The Statements are binding on decision-makers at all levels, including the Veterans’ Review Board.

13. In this case, the relevant Statements of Principles are:

• Nos 1 and 2 of 2000 concerning Anxiety Disorder; and
• Nos 58 and 59 of 1998 concerning Depressive Disorder.’

40 The Board noted that numbers 58 of 1998 and 1 of 2000 are the Statements of Principles for operational service, and numbers 59 of 1998 and 2 of 2000 are the Statements of Principles for defence service.

41 The Board noted that:

‘... the reports of Dr Likely support the relationship between the accepted disability [of pleural plaques] and each of the psychiatric disorders. The relationship between pleural plaques and depressive disorder is also supported by psychiatrist Dr J Rogers in his report of 28 November 2000. Those reports may well be sufficient to establish a service nexus on the basis of the causal processes noted above for operational service and/or defence service ...’

42 The Board referred to the fact that its earlier hearings had been adjourned:

‘ because any characterisation of the conditions [of the applicant’s pleural plaques as meeting the definition of major illness or of meeting the definition of a respiratory disorder as that term is used in respect of anxiety disorder] as being either war or defence-caused will depend on the status of the condition of pleural plaques ...

The matter is an important one as the Board is required to determine whether the condition is war-caused under section 9 of the Act or defence-caused under section 70 of the Act.’

The decision to adjourn was so that advice might be obtained as to ‘whether the condition [of pleural plaques] has been accepted as a war-caused or a defence-caused disability.’ The response given to the Board was:

‘This is to advise that the decision dated 21 August 2000 relied upon the evidence at folio 36 in which Mr Crane has indicated that he worked on de-lagging during his operational service and eligible service.

In making my decision on pleural plaques I am of the view that a reasonable hypothesis of a relationship to operational service had been met as de-lagging had been undertaken during the periods of his operational service which included 20 December 1967 to 3 January 1968, 17 January 1968 to 16 February 1968 and 27 March 1968 to 26 April 1968.’ (Emphasis added)

43 The Board said in par 22 of its reasons:

‘This Board also acknowledges that the claims assessor accepted pleural plaques on the basis of a reasonable hypothesis connecting that condition with the veteran’s operational service. On this basis, the Board has determined that the "reasonable hypothesis" standard or proof should be applied to its consideration of major depressive disorder and anxiety disorder thereby attracting Statements of Principles No 58 of 1998 and No 1 of 2000 respectively.’

44 Having expressed the proper approach to be followed, the Board nonetheless concluded that the veteran’s pleural plaques were not a major illness as defined in the Statement of Principle, and that the onset of the veteran’s psychiatric conditions preceded that of pleural plaques. It is important to note that the basis of the Board’s determination was not on the possible relative contributions of each particular period of the veteran’s naval service. It was fully alive to the requirements for entitlement for major depressive disorder and anxiety disorder.

45 The Board concluded:

‘Having reviewed the whole of the material before it and for the reasons given above, the Board finds that none of the minimum factors set out in the Statements of Principles is raised by the evidence in this case. The Board is therefore of the opinion that the material does not raise a reasonable hypothesis within the meaning of subsection 120(3). It follows that the Board is satisfied beyond reasonable doubt, for the purposes of subsection 120(1), that there is no sufficient ground for determining that the veteran’s depressive disorder and anxiety disorder were war-caused.’

46 In the material before the Tribunal, there was a document submitted by the veteran which bears a stamp that it was received by the Tribunal on 26 November 2001. That document is headed "Details of the NEW disabilities you are now claiming as war or defence caused". In the column to be filled in by the veteran, the direction is given:

‘List the disabilities and/or symptoms you are now claiming. Do not include any injury or disease already accepted as war or defence caused.’

Under the description "Disability and/or Symptom", the veteran has written ‘major depressive disorder’ and then, in answer to the question ‘Why do you believe your service caused, contributed to or aggravated this disability?’, there is handwritten:

‘Caused through anxiety over asbestosis – diagnosed by Dr Richard Slaughter Specialist Radiologist Prince Charles Hospital & Dr Michael Likely (Psych) for the major depressive disorder – as detailed also in Dr Likely’s report on page 3 dated 12 January 2000.

47 Also in the material before the Tribunal is a report by Dr John Rogers of 13 November 2001 received on 26 November 2001, which in summary says:

‘I am in no doubt that he continues to suffer from a Major Depressive Illness with melancholic features which have persisted for some time and in all probability was triggered by the knowledge of his suffering from exposure to asbestos in his naval area ...’

48 A report to the Department of Veterans’ Affairs by Dr J. Vince on 15 June 2000 which was concerned with alcohol dependence or alcohol abuse, contains a reference that the veteran:

‘developed depression related to fear of asbestos related illness, developing from navy exposure. Fears started about 10 years ago.’

In answer to the question, ‘Did the veteran experience a severe stressor in the two years prior to the clinical worsening of alcohol dependence or alcohol abuse?’, Dr Vince reported that the date on which the stressor occurred was 10 years ago and the description of the stressor is ‘saw mate from navy on television dying of mesothelioma.’

49 At the hearing before the Tribunal, Mr Crane was represented by Mr D. Honchin of Counsel, who also appeared for him on this appeal, while the Commission was represented by Mr J. Stoner, a departmental advocate.

50 Given all of the above, it is impossible to conclude that the Tribunal in this case was ignorant of, and therefore did not consider, whether the material pointed to a hypothesis connecting the psychiatric injury or disease of Mr Crane with either the operational service or the defence service rendered by him.

51 The formulation of the requirements of the Act in Deledio were not meant to be, as they could not be, a substitution for the requirements of the Act. The Statement of Principles, to which reference was made by the Tribunal, require a connection between, relevantly, the operational service of Mr Crane and the psychiatric condition, or the defence service of Mr Crane and the psychiatric condition. It is simply wrong to think that the Tribunal acted in ignorance of these matters. They were expressly defined by the Board, whose decision the Tribunal was being asked to review

52 The short point is that the Tribunal considered the requirements of the Act properly, and there was no failure to address the matters referred to in Deledio.

53 Further, the Tribunal did not ‘wrongly [consider] all of the Applicant’s naval service’.

54 In considering an appeal from a body such as the Administrative Appeals Tribunal, it is important, particularly in this case, to bear in mind the admonition of the High Court in Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 272, where Brennan CJ, Toohey, McHugh and Gummow JJ said:

‘... the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed.’

55 The principles set out by Kirby J at 291 to 293 are also apposite; in particular, that a Federal Court, in reviewing a decision has ‘to be convinced, the burden being upon those who asserted it, that legal errors by the [decision maker] had been shown.’

56 That there was by the Commission in this case an over-zealous approach to the scrutiny of the reasons of the Tribunal, can be demonstrated in respect of two submissions advanced by the Commission on this appeal. It was said that where the Tribunal determined that the ‘severe psychosocial stressor’ was ‘experienced within one year of the onset of the psychiatric illness’, the Tribunal applied the wrong test. It was said on behalf of the Commission that the question was not to ascertain the "onset" of the illness. The correct test was whether or not the severe psychosocial stressor was experienced within one year of the ‘clinical onset’ of the relevant disorder.

57 It was next pointed out that Dr Likely, in January 2000, diagnosed the respondent as having a major depressive ‘approximately twelve years ago’, when the respondent saw a documentary regarding the deleterious effects of asbestos on the health of former sailors; it was said that this report does not accord with the Tribunal’s finding that Mr Crane had watched the television programme in 1990. As the Commission’s chronology itself makes plain, the 60 Minutes programme occurred in 1990, and Mr Crane claimed that his major depressive disorder arose as a sequel to that programme, which generated anxiety in him about asbestosis. The difference about when the documentary was broadcast is hardly therefore a relevant matter, let alone a substantial point.

58 Of critical focus before the Tribunal, and also in the present appeal, is the entitlement of the veteran to benefit under the Act, an entitlement which depends on the relationship, if any, between his depressive illness and his operational service, and the relationship, if any, between his depressive illness and his defence service.

59 Before turning to the reasoning and findings of the Tribunal, it is helpful to refer to parts of the chronology given to the Court by the Commission on the appeal. The Commission records in that chronology that:

‘1990 Applicant was watching a 60 Minutes programme about chest disease in Naval personnel.

• The Applicant witnessed a former colleague in a poor state of health.
• The Applicant has been troubled ever since by concerns that he will develop a similar condition.

28 August 1998 Statement by Mr Crane
...

• Refers to service from 1966 to 1973
• Refers mostly to non-active service work in relation to handling and working with asbestos.
• Refers to boiler room work and de-lagging work.
• He had concerns at the time of discharge about the effects of working with asbestos.
• He watched the 60 minutes program and saw an old mate Ray (Sootie) Bennett and was concerned as to his state of health.
• He had thoughts after this about the consequences for himself.

...

• He has recurring nightmares about "Sootie" and about work with asbestos and others.

12 January 2000 Report of Dr Likely (Psychiatrist)

...

• He claims that he saw the 60 Minutes show regarding the effect of asbestos on sailors.
• He recognised a former colleague who was in a poor state of health as a result of asbestos related disease and this caused him stress.
• He became pre-occupied with the possibility that he might develop asbestos related disease.
• He has attended on his GP for yearly chest x-rays but they have all been normal.

15 August 2000 Report of Dr Buchanan (Thoracic Physician)
...

• ... some evidence of asbestos related pleural plaques but not the more serious fibrosis.

19 September 2000 Report of Dr Likely (Psychiatrist)

• Applicant experiences symptoms of a depressive illness.
• Depressed mood and neurovegetative disturbance from poor sleep, poor appetite etc and worry.
• CT on 3/5/00 showed widespread pleural plaques. Est about 30%; and a sign of early asbestosis.
• This has heightened Applicant’s anxiety and depression.

...

• Continues to suffer major depressive disorder with guarded prognosis.

28 November 2000 Report of Dr Rogers (Psychiatrist)
...

• The Applicant saw 60 minutes programme in 1990 and saw a former naval colleague in a morbid state.
• "and from that point onwards [he] has been troubled about the possibility of him developing a similar condition. This constant concern led to the chest x-ray in 1995, which revealed pleural plaques consistent with those caused by asbestos. This was after ones which had been clear."

...

• "his major depression is triggered by service caused asbestos related pleural disease in 1995."

13 November 2001 Report of Dr Rogers (Psychiatrist)
...

• Diagnosis – Applicant has a major depressive illness which [w]as triggered by knowledge that he was suffering exposure to asbestos in naval career.

3 June 2002 Report of Dr Norman Rose (Psychiatrist)

• History given suggests that his concerns did not arise till after 1995 when the chest x-rays showed that there were some pleural plaques.

...

• He has become depressed since becoming aware of the pleural plaques.

...

• Considers that the symptoms of the condition commenced in 1995 when the Applicant was told that his x-rays were abnormal.

5 July 2002 Report of Dr Rogers (Thoracic Physician)

• CT Scan showed sub-pleural reticular shadows which suggests early asbestosis.

30 July 2002 Statement of Applicant

• The 60 Minutes documentary had a profound effect on the applicant and it was constantly on his mind.
• He says that the thoughts were happening about 1 year before he consulted a doctor about it and had x-rays.
• He moved to Townsville and had x-rays in 1995 which showed pleural plaques.
• From then on he claims that it was difficult to continue in employment.

20 August 2002 Report of Dr David McEvoy
(Respiratory Physician)

• Applicant’s exposure to asbestos dust was least during time on Sydney and much greater elsewhere on service.
• One cannot separate out the various exposures so as to be able to attribute cause.
• All exposures could have caused the plaques.
• Exposure on Sydney was light.
• Other exposure was moderate to heavy.’

60 Looking at the reasons of the Tribunal fairly, and in the context of the decision and reasons of the Board the subject of review, in our judgment, neither of the two broad grounds relied on by the Commission has been established.

61 The basis on which the veteran asserted he was entitled to disability pension and medical treatment for depression and generalised anxiety, pursuant to the provisions of the Act, was specified by the Tribunal at the outset of its reasons for decision. The Tribunal said:

‘The Applicant claims that he suffered a severe psychosocial stressor when he watched a television documentary in 1990 about the incidence of asbestosis in ex-service personnel who had served aboard ships of the Royal Australian Navy. He suffered a further severe psychosocial stressor when he was later diagnosed with pleural plaques in 1995.’

62 The Tribunal set out the veteran’s service in the Navy, and the three periods of the trips to Vietnam on the HMAS Sydney (which constituted operational service), and noted that he also had defence service, for the purposes of the Act, from 7 December 1972 until discharge on 31 December 1973. The Tribunal accepted the veteran as an honest and reliable witness, and noted three parts of Mr Crane’s evidence ‘which the Tribunal found to be particularly relevant’.

63 The first of those referred to his history of exposure to asbestos in lagging and de-lagging steam pipes. This history included his service on the HMAS Sydney and in particular the three trips to Vietnam, and made particular reference to:

‘ ... two different occasions, whilst at sea on the way to Vietnam, I was directed to de-lag some steam pipes and clean away rubbish in order for some repairs to take place in the engine room, on that machinery. My recollection of my messdeck was that it was just forward of a boiler room and that asbestos lagged steam pipes ran through it where our hammocks were slung.’

64 His service history also referred to exposure to asbestos during the period of approximately three years when posted to HMAS Anzac; his posting to HMAS Cerberus where he did a furnace bricklaying and lagging course; his posting to HMAS Kuttabul; then a further posting back to HMAS Anzac for two years. That history referred specifically to an event at Garden Island where he was ordered by a Chief Stoker to de-lag some machinery spaces and then bag all asbestos cloths, debris and rubbish and sweep the decks clean. The veteran says:

‘At no stage were we given or directed to wear breathing apparatus.’

and:

‘I believe the Chief Stoker that ordered us to perform that night work so many years ago, was diagnosed in May 1999, with an asbestosis related disease and passed away in November 1999 from that disease.’

65 The second body of evidence which the Tribunal found to be particularly relevant was expressed by the Tribunal as follows:

‘In 1990, the Applicant was watching a television program, 60 Minutes. The segment which particularly took his interest was about the poor health from asbestos related chest disease of former naval personnel. In particular, the programme presented one of his former naval colleagues as suffering from severe asbestosis. The Applicant observed that his former colleague was in such a poor state that he was hardly recognisable. From that point onwards the Applicant has been seriously troubled about the possibility of him developing a similar condition.’ (Emphasis added)

66 The third piece of evidence which the Tribunal found particularly relevant was evidence from the applicant about matters subsequent to the documentary. That history was set out by the Tribunal and commences:

‘1. In regards to the documentary in which I saw a shipmate of mine who had been affected by asbestos I found that the documentary had a profound effect on me and it was constantly on my mind after that. These thoughts were happening for approximately a year before I consulted a doctor and had X-rays.

2. I moved to Townsville and saw a Dr Vince, I informed him of the nature of my fears and concerns. I had a number of X-rays and in 1995, an X-ray was conducted which disclosed the presence of plural plaques.

3. From that time onwards I found it increasingly difficult to continue with my employment. My fears and concerns about asbestos related diseases were constantly on my mind. I found it difficult to concentrate, particularly about work matters. I tried to take up as much of my time as possible with work matters in an effort to fill my mind with work, but no matter how much time I took up, my concerns and fears about asbestos continued to play on my mind despite my attempts.’

67 The Tribunal made specific reference, in par 9 of its reasons, to the evidence from Dr McEvoy concerning the exposure of the veteran to asbestos fibre dust throughout the various facets of his naval service. Dr McEvoy reported in August 2000 as follows:

‘There is no doubt that John Crane had significant exposure to asbestos fibre dust throughout his naval service. This was probably least during his initial period of training aboard HMAS Sydney when he was an ordinary stoker in 1967 and 1968, and greatest after he had completed the naval furnace bricklaying and lagging course following which he performed lagging frequently at HMAS Kuttabul in Sydney, and subsequently for 2 years on HMAS Anzac where he was more or less permanently involved in jobs involving lagging. His statement describes a particularly heavy exposure to asbestos dust on refitting at Garden Island.

The history does not allow separation of the relative effects of periods of exposure to asbestos fibre dust as all periods enumerated were significant, and heavy enough to cause the formation of asbestos pleural plaques.

In relation to the specific question posed, I would consider that the exposure on board HMAS Sydney as an ordinary stoker provided regular but relatively light asbestos exposure whereas his subsequent period of employment in the Navy caused moderate to heavy asbestos exposure between 1968 and 1973.’

68 The middle paragraph of that extract is important, particularly in the light of the acceptance by the Commission of pleural plaques as war-caused (and not defence-caused). It will be recalled that in a memo dated 6 June 2001, the Departmental Claims Assessor K. Stewart said:

‘In making my decision on pleural plaques I am of the view that a reasonable hypothesis of a relationship to operational service had been met as de-lagging had been undertaken during the periods of his operational service which included 20 December 1967 to 3 January 1968, 17 January 1968 to 16 February 1968 and 27 March 1968 to 26 April 1968.’

69 While it is true that the evidence of Dr McEvoy is concerned with the connection between the portions of the respondent’s service and asbestosis, rather than the psychiatric illness, if a reasonable hypothesis of a relationship between pleural plaques and exposure to asbestos dust during operational service is accepted (as it has been), it is not a difficult step to find that there is a reasonable hypothesis of a relationship between an anxiety disorder about asbestosis and exposure to asbestos dust during operational service.

70 The Tribunal expressed its findings as follows:

‘12 (a) The Applicant suffers from a major depressive disorder and generalised anxiety.

(b)

The Applicant’s psychiatric illness was caused by the stress of worry resulting from a combination of his duties during his naval service in which he was heavily exposed to asbestos dust and becoming aware, through a television programme in 1990, of the probability that he would eventually contract a very serious lung condition which could result in death or serious physical disability.

(c)	The Applicant’s psychiatric condition was aggravated in 1995 and again in 2000 and 2002, when his fears about contracting an asbestos related lung condition began to show medical signs of coming true.’

71 This finding relates the psychiatric illness suffered by the veteran to the heavy exposure to asbestos during his ‘naval service’. The reference to "naval service" must relate to all those periods of his service during which he was exposed to asbestos, which comprehends his operational service and his ineligible service. The finding in par 12(b) of the Tribunal’s reasons is, in our view, an acknowledgment that his exposure to asbestos dust during his operational service played a part in the formation of his psychiatric condition.

72 Paragraph 13 of the Tribunal’s reasons commences:

‘The factors which must exist before a depressive disorder or an anxiety disorder can be said to be connected to the circumstances of the Applicant’s relevant service are set out in the relevant Statement of Principles prepared by the Repatriation Medical Authority.’

It is a failure to appreciate the significance of ‘the Applicant’s relevant service’ and reference to ‘the relevant Statement of Principles’ in the Tribunal’s reasoning, which invalidates the Commission’s complaints on appeal.

73 The Tribunal identified those Statements of Principles applicable to the applicant as being number 58 of 1999 (a typographical error for 1998) and number 1 of 2000, and number 59 of 1998. The Tribunal made no express reference to number 2 of 2000. As has been demonstrated in the detailed reference to those Statements of Principles, the relevant service for Statements of Principles number 58 of 1998 and number 1 of 2000 is, relevantly, "operational service" and the "relevant service" for number 59 of 1998 and number 2 of 2000 is "defence service".

74 The Tribunal, in par 17 of its reasons said:

‘The Tribunal takes the view that the Applicant’s service in the Navy, during which time he was exposed to asbestos, made a major contribution to the creation of the severe psychosocial stressor. Without the naval service there would have been no stressor. The severe psychosocial stressor was connected to the Applicant’s naval service. It arose out of, or was attributable to his naval service.’

This finding is unremarkable. The anxiety of Mr Crane about asbestosis was related to the entirety of the periods of his naval service which involved exposure to asbestos dust. The Tribunal tersely concluded:

’18. Consequently, the Tribunal finds that the Applicant’s major depressive disorder and generalised anxiety disorder are war-caused with effect from 29 February 2000, pursuant to subsection 9(1)(b) of the Act.’

The reference to subsection 9(1)(b) of the Act indicates that the Tribunal found that the major depressive disorder and generalised anxiety disorder arose out of, or was attributable, to eligible war service rendered by Mr Crane.

75 While it is tersely expressed, the finding in par 12(b) of its reasons, and the conclusions expressed in pars 17 and 18 of the Tribunal’s reasoning, indicate that the Tribunal was of the view that his psychiatric condition was attributable to all of his exposure to asbestos during his service in the Navy, which exposure included exposure during his operational service, exposure during his ineligible service, and whatever exposure there was during his defence service.

76 The anxiety about asbestosis was therefore attributable, in part, to the operational service rendered by the veteran, which operational service involved exposure to asbestos dust.

77 The further requirements of the Statement of Principles dealing with operational service, and the requirements of the Act, the subject of exposition in Deledio, were therefore found by the Tribunal to be met.

78 For these reasons, the appeal should be dismissed with costs.

I certify that the preceding seventy-eight (78) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Spender, RD Nicholson and North.

Associate:

Dated: 5 April 2004

Counsel for the Applicant:	Mr Roger Derrington
Solicitor for the Applicant:	Australian Government Solicitor
Counsel for the Respondent:	Mr Darin Honchin
Solicitor for the Respondent:	Purcell Taylor Lawyers
Date of Hearing:	11 November 2003
Date of Judgment:	5 April 2004